[2] The scope of the application of the partial invalidation doctrine and the relationship with the mandatory law

[3] In a case where a company has agreed to compensate for the total amount of losses incurred when the company retires as a result of its employees’ participation in capital increase with consideration, whether the said compensation agreement becomes null and void on the ground that the said compensation agreement is null and void (negative)

[4] The case holding that a bank's act of inducing its employees to participate in the capital increase issued at par value when entering into an agreement to compensate for losses contrary to the principle of shareholder equality in order to increase its equity capital ratio in a short term constitutes an unlawful act

[2] Article 137 of the Civil Code applies to the area governed by the principle of self-government as a voluntary provision. Thus, in cases where part of a juristic act is invalidated because it violates the validity clause, which is a mandatory law, and thus becomes null and void, if an individual law provides for the validity of partial invalidation, it shall be followed, and if there is no such provision, Article 137 of the Civil Code shall be applied in principle. However, in light of the relevant validity provision and the legislative purport of the law with the validity provision, if the remaining part is invalidated, it shall not be deemed null and void if it obviously goes against the validity provision and its purport.

[3] In a case where a company has agreed to compensate for the total amount of losses invested when it retires through the employee’s participation in capital increase with capital increase, if the said agreement to compensate for losses incurred by the employee’s retirement violates the principle of equality of shareholders and thus becomes null and void, thereby making the new underwriter receive a refund as unjust enrichment on the ground that the said agreement to compensate for losses incurred by the employee’s retirement violates the principle of equity of shareholders, this would result in guaranteeing the recovery of the capital invested to him/her, contrary to other shareholders, which would result in a violation of the principle of equity of shareholders, which is a mandatory provision. Therefore, the said agreement to compensate

[4] The case holding that a bank's act of inducing its employees to participate in paid-in capital increase issued at par value when it presents a specific method of preparing an interim settlement of accounts of retirement allowances and concludes an agreement to compensate for losses contrary to the principle of shareholder equality where the market price of the stocks falls short of its par value in order to increase its equity capital ratio in a short period

1. Regarding the plaintiffs' grounds of appeal

A. Examining the reasoning of the lower judgment in light of the record, the lower court’s finding of the facts as indicated in its holding, and based on its reasoning, affirmed the following: (a) the criteria for the agreement on compensation for losses and the special payment of retirement allowances (hereinafter referred to as the “instant agreement on compensation for losses”) stipulate that the employees of the peace bank that will participate in capital increase and acquire shareholders’ status shall compensate for the entire amount of losses incurred when they retire; (b) thereby, granting the company’s superior right to recover the invested capital to the shareholders, which is absolutely guaranteed by the company; and (c)

Although the instant compensation agreement concurrently serves as a collective agreement or rules of employment governing the relationship between an employer and an employee, as long as it cannot be denied that the purpose of the agreement is to compensate for losses arising from the status as a shareholder, it cannot be avoided from the subject matter of the principle of shareholder equality. Moreover, even if the time of conclusion is prior to the acquisition of a shareholder’s qualification, since the Plaintiffs’ acquisition of new shares, thereby compensating for losses arising from the sale of new shares after acquiring a shareholder’s qualification, it shall be deemed as violating the principle of shareholder equality. It cannot be viewed otherwise on the ground that at the time of the instant compensation agreement for losses, the Plaintiffs were the employees of the Peace Bank at the time of the instant

The court below did not err in the misapprehension of legal principles as to the principle of shareholder equality, as alleged in the grounds of appeal.

B. As long as the instant agreement on compensation for losses is deemed null and void for the foregoing reasons, whether it violates the principle of prohibition of acquisition of treasury stocks can not affect the conclusion of the lower judgment. Therefore, the allegation in the grounds of appeal on the premise that the instant agreement on compensation for losses does not violate the principle of prohibition of acquisition of treasury stocks is without merit without further review.

C. Article 137 of the Civil Act applies to the area governed by the principle of self-government as a voluntary provision. Thus, in a case where part of a juristic act is invalidated due to its violation of the validity provision, which is a mandatory provision, if an individual law provides for the validity of partial invalidation, it shall be followed. If there is no such provision, in principle, Article 137 of the Civil Act shall apply, but if the remaining part is invalidated in light of the legislative purport of the law with the pertinent validity provision and its validity provision, it shall not be deemed that the remaining part is null and void (see Supreme Court Decision 2003Da1601, Jun. 11, 2004, etc.). Accordingly, if the agreement, which was the motive of the plaintiffs to acquire new shares, is deemed null and void due to the violation of the principle of shareholder equality and thus, it shall not be deemed null and void, and if it is contrary to the principle of shareholder equality and thus, it shall not be deemed null and void, it shall not be deemed null and void.

The court below's rejection of the plaintiffs' claim for return of unjust enrichment equivalent to the purchase price of each share based on the premise that the purchase price of new shares is null and void is justified, and there is no error of law such as misunderstanding of legal principles as alleged in the grounds of appeal.

D. The court below rejected a claim for return of unjust enrichment on the premise of constructive payment on the ground that the plaintiffs merely lent their names in the above new shares and there is no other evidence to acknowledge it. Thus, there is no omission in judgment as alleged in the grounds of appeal in the judgment below, and examining the reasoning of the judgment below in light of the records, it cannot be deemed that the peace bank, as the peace bank, had an obligation to pay retirement allowances according to interim settlement, could not be deemed to have pretended the payment of retirement allowances with the funds raised by interim settlement of accounts, as long as the plaintiffs had an obligation to pay retirement allowances to the plaintiffs. Thus, the court below did not err in the misapprehension of legal principles in this part.

E. In light of the records, the court below is just to reduce the defendant's amount of compensation based on the fair and good faith principle, and there is no error in the misapprehension of legal principles as to comparative negligence, contrary to what is alleged in the ground of appeal.

2. As to the Defendant’s ground of appeal

A. Examining the reasoning of the judgment below in light of the records, the court below is justified in finding the facts as stated in its holding, and the court below's act of inducing the plaintiffs to participate in the capital increase issued at par value when (title omitted) banks present specific methods of raising capital contribution, such as interim settlement of retirement allowances, and enter into an agreement to compensate for losses contrary to the principle of shareholder equality.

The court below did not err in the misapprehension of legal principles as to illegality as an element of tort, as alleged in the grounds of appeal.

B. In light of the records, the court below is just to reduce the defendant's amount of compensation to 80% based on the fair and good faith principle, and there is no error in the misapprehension of legal principles as to comparative negligence, contrary to what is alleged in the ground of appeal.

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)